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Two recent cases examine the intersection of immigration law and employment litigation and both decisions are in favor of the immigrants.

First, California employment law does not make distinctions between employees working lawfully or illegally. Labor Code 1171.5 plainly declares:

(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individualsregardless of immigration status who have applied for employment, or who are orwho have been employed, in this state. (b) For purposes of enforcing state labor and employment laws, a person's immigration status is irrelevant to the issue of liability,and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person's immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.

In Reyes v. Van Elk, the California Court of Appeal held that section 1171.5 is not preempted by federal immigration laws. Reyes and others accused Van Elk of failing to pay the "prevailing wage." The Superior Court held that federal immigration law preempted section 1171.5 and that Reyes could not seek unpaid prevailing wages because he was an illegal immigrant. The court of appeal reversed, holding that federal law (IRCA) does not preempt section 1171.5, and that Reyes had standing to sue for unpaid wages.

Second, in a case having broad implications for employers hiring workers under immigration visas such as H1-B's, the Ninth Circuit Court of Appeals held that an employer could be held liable for wrongfully discharging an employee who was not authorized to work in the U.S. The case is Incalza v. Fendi. Incalza worked for Fendi under an E-1 visa. When a French company bought Fendi, the E-1 visa no longer was valid. Fendi, which did apparently not want to retain Incalza anyway, discharged him because he was not lawfully working in the U.S. Incalza asked for a leave of absence to obtain a visa or to marry his fiance, a U.S. citizen.

Incalza sued for breach of contract not to terminate without good cause, among other things. Fendi argued that "good cause" was established because Incalza was not lawfully allowed to work, and Fendi was not obligated to wait until Incalza became authorized to work. A jury found in favor of Incalza. Fendi appealed and ran right into Stephen Reinhardt.

The Court of Appeals said that IRCA does not require employers to terminate workers who may resolve immigration status if they are granted a leave of absence. Does the law require granting a leave of absence? No, but this did not stop the Court of Appeals. The Court said that an employee on leave is not actually "employed" under IRCA. (This is news to employers who must provide all sorts of leaves with guaranteed reinstatement.) Because the employee is not really "employed" while on leave, the court reasoned, the employer can comply with IRCA and not discharge the worker.

Distinguishing Supreme Court authority and the IRCA statute itself, the Court announced this rule: "as a general rule, individuals who are indisputably not authorized to work must be discharged immediately. An individual who has the opportunity to switch from an E-1 to an H1-B . . . is, however, another matter."

Incidentally, the court also held that IRCA does not conflict with Lab. Code section 1171.5, just as the state court in Van Elk did. So, that issue is settled unless the Supremes take up Fendi.

In light of this case, employers seeking to discharge employees must carefully examine whether to use the expiration of a visa as the sole justification for termination. The courts may well say that it was not "necessary" to discharge the worker merely because he or she no longer was authorized to work in the U.S.

An employee claiming "bi-polar" disorder was privileged to storm out of the boss' office, throw papers at the boss, and kick and toss objects around her cubicle, according to the Ninth Circuit Court of Appeals.

Gambini received a warning for her attitude. She claims she had bi-polar disorder. During the meeting over the warning, she became upset, left the meeting, and then started kicking her cubicle and throwing objects. Employees complained they were in fear of her next outburst. The Company hospitalized her and provided FMLA paperwork. They later terminated her employment.

Gambini sued and lost the case at trial. In Gambini v. Total Renal Care, deciding the case under Washington law (but tracking its own ADA jurisprudence), the Court of Appeals said that the jury should have been instructed that "if it found that her conduct at issue was caused by or was part of her disability, then it could find that one of the substantial reasons she was fired was her bi-polar condition."

That means the jury has to consider whether the conduct at issue is associated with a mental disability that cannot be seen or really measured. Is the conduct a result of an impairment, or just the result of a bad day, or someone emboldened by ADA protection maybe?

Consider a state like California where nearly every condition is a disability. Any conduct an employee can attribute to a disability is protected? What if the employee's symptoms include breaking things or setting them on fire? What if the employee "because" of a disability does not control bodily functions? How about touching other employees? Cursing? Taking unannounced days off?

Yes, these examples are subject to an "undue hardship" analysis, but the employer has the burden of proving undue hardship, and it's a tough burden. Direct threat? Even tougher! What if the employer fired twenty people without disabilities for throwing objects at a supervisor? The person with a disability gets a pass? I understand there are folks with real disabilities who need a boost. But I don't think the ADA was intended to be stretched in this fashion. Additionally, the opportunity for abuse is pretty high with a decision like this.

Tiny bright spot for the employer - the Ninth Circuit said that the FMLA claim was properly dismissed because the employer showed it would have fired Gambini regardless of her having taken leave.

The Fair Employment and Housing Commission responded to the concerns of the Office of Administrative Law by issuing revised final AB 1825 regulations. There are refinements regarding who will be eligible to design and present AB 1825 training.

Yes, we're still qualified. We think.

But employers looking to conduct their training in house, and those evaluating third-party vendors, should carefully review these regulations to ensure that the designer and presenter is qualified under the new regulations.

The California Division of Labor Standards Enforcement has revised its Enforcement and Interpretations Manual regarding some aspects of the "professional exemption." The DLSE's enforcement position is consistent with the DOL regulations as they existed before the revisions in 2004.

In particular, the DLSE clarified that the "learned" professional exemption now requires learning only above the high school level. The manual does not say it is necessary for exempt employees to have post-bachelor's degrees. If you haven't fallen asleep yet, you can view the manual here. Turn to chapter 54, which is at page 236 of 303 on your Acrobat reader....

FMLA leave is generally unpaid. The FMLA generally provides employers with the right to require employees to use vacation and sick leave (or other paid leave) during FMLA-covered leave. But there are some rather badly written DOL regulations that restrict the employer's right to when leave is "unpaid." And when an employee receives benefits such as under a temporary disability leave benefit plan the leave is not "unpaid" and the employer cannot require the employee to use vacation or sick pay. The Seventh Circuit Court of Appeals recently applied that regulation in Repa v. Roadway Express, Inc. The effect of the decision is that California employers cannot require employees to use vacation, sick or other paid leave when the employee is receiving state disability, PFL, or workers' compensation benefits. If you need more information on this, we will have an article posted on our website about it next week.